Intellectual Property
Toothless Termination: What Yonay v. Paramount Pictures Reveals About the Limits of § 203 Termination for Nonfiction Source Material
Jeffrey A. Payne*Yonay did not break new ground; it faithfully applied settled copyright law. But in doing so, the decision revealed a structural mismatch between § 203’s policy ambition (sharing in the fruits of commercial success) and the copyright framework’s limits
Substantial Similarity in Sedlik: The Potential Reckoning of Copyright’s “Intrinsic Test” in the Ninth Circuit
Nancy Wolff and Isabella HyunAlthough Kat Von D won the battle in this case, she may not have ultimately won the war. The days of the Ninth Circuit’s “intrinsic test” may be numbered, as evidenced by the many and detailed criticisms by scholars, practitioners, and now by the court itself.
Hot for Teaching: Rock & Roll Hall of Fame Prevails on Transformative Educational Fair Use Defense
Darren W. FordWith two of the four factors weighing in favor of the museum, and only one weighing "slightly" in favor of Zlozower, the district court held that the museum's use of the Van Halen photographs was fair use and dismissed the complaint.
Second Circuit Affirms Dismissal of George Santos’s Copyright Suit
Raphael Holoszyc-Pimentel and Nathan SiegelSantos had sued after the show Jimmy Kimmel Live! ran a segment called “Will Santos Say It?” that mocked Santos’s willingness to say absurd things for money in videos on the site Cameo—videos that Kimmel had allegedly tricked Santos into making.
Fair Use in the Age of Artificial Intelligence: An Analysis of Recent Federal Court Decisions in AI Training Data Cases
Amanda Harris and Jeffrey PayneIn two published orders issued within the same week, two federal judges in the Northern District of California rendered significant decisions addressing whether the use of copyrighted works to train generative artificial intelligence models constitutes fair use under federal copyright law.
Farther Down Transformative Use’s Serpentine Path: Second Circuit Holds That Website’s Use of Snake Photo Is Not Fair Use
Robert RotsteinIn perhaps a novel formulation, Judge Leval wrote that the transformative-use test turns on whether the very copying of the original communicates a message different from the original, in contrast to an extrinsic declaration of a new message.
No Entrance to Legal Paradise: D.C. Court of Appeals Affirms Denial of Copyright Registration for AI-Generated Artwork
Brandon E. HughesThe Court’s ruling is consistent with longstanding law, reaffirming that works exclusively created by AI are ineligible for copyright protection. While this opinion ultimately leaves more nuanced “line-drawing” questions for another day, authors of AI-generated works are likely to continue to register their works with the Copyright Office and engage in legal fights to determine…
Dua Lipa Wins Summary Judgement in Levitating Copyright Infringement Case
Rachel OhWhile acknowledging that “it is possible that a ‘layperson’ could listen to portions of Plaintiffs’ and Defendants’ songs and hear similarities,” Judge Katherine Polk Failla concluded that “there can be no substantial similarity (and thus no copyright violation) as a matter of law, because ‘the similarity between the works concerns only non-copyrightable elements of the…
Judge Grants Summary Judgment Against Fair Use Defense in AI Context
Rachel OhIt is still early to predict what impact this case will have on the pending infringement cases against OpenAI and other generative AI companies. But Judge Bibas’s recognition of a “AI training data market” will certainly be cited by plaintiffs in those cases.
Ninth Circuit Reverses Copyright Lawsuit Against Aritzia, Opening Up Possibility of Copyright Protection for Kinetic Sculpture
Rachel OhThe Ninth Circuit noted that “copyrightability of kinetic and manipulable sculptures” is “an area of copyright law that has not yet received much attention” and “may be better informed with a more complete factual record.”